LYNCHING -Necessitating a Legal Framework

palghar, Alwar and Beyond of Lynching

On the night of 16th of April 2020, three men were attacked in the district of Palghar in Maharashtra, India. The men were dragged out of their vehicle and were subjected to brutal violence due to suspicion of them being thieves. The mob that attacked them is estimated to be over 100 locals in the area including some juveniles, who were apprehended by the police . Not long after, on 18th June 2020, a 35-year-old named Israr, was brutally beaten to death in Uttar Pradesh, for allegedly stealing a motorcycle. Most recently, three Bangladeshi nationals were attacked in Assam for allegedly being “cattle smugglers.” These incidents barely scratch the surface of the extent of mob violence in India. However, a common thread connecting these cases indicates that there is no degree of specificity with regard to the legal provisions for punishment, which leads to a lack of vindication of rights.

Before engaging with the dynamics of the law concerning mob-violence, it is necessary to clarify the issue of crime statistics, data collection, and accessibility. There presently exists a lacuna with respect to data collection in the context of mob violence in India. In the absence of such data being available through the National Crime Records Bureau (“NCRB”), the primary mode of accessing deaths associated with mob violence and lynching remains through non-state sources. Additionally, it is clear that despite NCRB collecting such data on mob violence, it has not been published on their website or made publicly available. Only if such data exists will there be a possibility of taking cognizance of the magnitude of the issue.

India’s Current Legal Framework

Mob violence is usually reported under various provisions of the Indian Penal Code (“IPC”), typically involving murder (Section 302), attempt to murder (Section 307), voluntarily causing hurt (Section 323), or rioting (Section 146). The crime is thus viewed from the lens of physically harming or taking away the life of another individual. Additionally, the provisions dealing with the question of accountability of several persons in a mob are unlawful assembly (Section 141), and acts done by several persons in furtherance of a common intention (Section 34). However, this framework does not fully encapsulate the factum of sentiment that a mob share.

Section 141(dealing with unlawful assembly), for instance, does not account for the possibility that violence was instigated by a mob with an end goal in mind. While Section 34 (dealing with common intention) imputes vicarious liability on persons requiring a prior meeting of the minds, it needs to be considered  whether ‘vicarious liability’ is a sufficient answer. While the provision holds each person accountable for the offence as if it were an act done by ‘him alone’, it does not factor in the sentiment of the mob, or the collective identity of it – which is important to be realised in addition to individual criminal responsibility. The result is that while Section 34 constructs criminal liability, it does not acknowledge the presence of a shared sentiment that drives the actions of the mob. The consequence being that the fundamental nature of the crime of ‘mob violence’ or ‘lynching’ is left unaddressed. Rather, the law charges the perpetrators for the crimes of ‘murder’ or causing ‘grievous hurt’ – which are merely the result of their actions.

Importantly, it also needs to be realised that provisions such as Section 146 (dealing with rioting) addresses the use of force or violence by an unlawful assembly while trying to achieve the common object – as envisioned under Section 141. This pushes the boundaries of violence that may potentially be committed by members of an unlawful assembly. However, an unlawful assembly engaging in a riot is quite different from one engaging in lynching. Undoubtedly, while the capacity for damage is similar, and often these incidents are not isolated – as evidenced in the Delhi Riots of 2020, lynching is arguably more sinister. In fact, some argue that lynching has replaced the age-old communal riots that caused panic and divisions in India’s social fabric. This is problematic, given that lynching is significantly more demoralizing (as compared to riots), because the targeted are often one or two people, representing an entire community.

Keeping these subtle socio-political and legal intricacies in mind, there needs to be a specific law enacted that addresses the elements of lynching while stating it to be an offence. There is an imperative to locate the elements that formulate the offence of lynching. There is a need to identify the lines on which lynching has occurred, be it communal, caste, place of birth, identity, etc., and not reduce the offence to the consequence of the mob’s mentality – be it, murder (Section 302), voluntarily causing hurt (Section 323), or rioting (Section 146).

Conceptualizing India’s Obligations under International Law

The human rights discourse offers some guidance while identifying India’s obligations in the context of mob violence. India has adopted the Universal Declaration of Human Rights (“UDHR”) and has ratified the International Covenant on Civil and Political Rights (“ICCPR”), making the obligations binding. While Article 7 of the UDHR guarantees equal protection against discrimination,  Article 20(2) and Article 26 of the ICCPR prevent advocacy of ‘religious hatred’ that constitutes incitement to violence or discrimination, and prohibit discrimination on grounds of religion respectively. It is not uncommon for constitutional discourse to turn to the UDHR framework in cases of violation of fundamental rights. In fact, the Supreme Court has realised in Chairman, Railway Board & Ors. vs. Chandrima Das, the need to read principles of the UDHR into the domestic legal framework. These obligations highlighted by international instruments also bring to question India’s handling of the ‘epidemic’ that is lynching.

There has also been emerging discourse to realize lynching as a ‘crime against humanity’ as per Article 7 of the Rome Statute. For this, lynching needs to be realised as a “widespread” or “systematic” attack against “civilian population.” This may be plausible for two reasons – first, the incidents of public lynching that have markedly risen since 2014, and secondly, these are targeted crimes against minorities in the country. Further, as Pillai notes, there certainly is a degree of institutional complicity with regard to cases of lynching across India. This points to showcasing the systemic nature of the offence, which may classify lynching as an ‘international crime’. However, it is critical to also mention that India is not party to the Rome Statute, which means that the jurisdiction of the International Criminal Court cannot be invoked. However, theoretically, prosecution by the ICC is possible in case of a reference by the UN Security Council under Chapter VII of the UN Charter. Regardless of access to the forum, there certainly exists a lens of scrutiny that accompany such international crimes, or crimes against humanity. Such as been the case for countries like Eritrea, the Philippines, and Myanmar, in the recent past. Such findings typically accompany probes by NGO’s, human rights organizations, as well as international organizations.

Conclusion: Unimplemented, Insufficient, and the Way Forward

With the non-existence of an appropriate legal framework, in Tehseen Poonawalla vs. UOI, the Supreme Court put forth three categories of guidelines against lynching – preventive, remedial and punitive (“the Guidelines”). These primarily aim to address each stage of legal implementation by — first, engaging in identification processes to gather intelligence concerning areas prone to mob activity; second, ensuring timely filing for FIRs and implementation of victim compensation schemes; and third, tackling departmental inaction. The Guidelines operate due to the absence of a specialised law. Despite there being a recommendation put forth by the Court to formulate an ‘anti-lynching law’, it has not been taken up by the Parliament. Further, there is a brewing indifference amongst state governments, where there is minimal implementation of even the Guidelines.

Aside of the Guidelines, no initiative has been taken by the Parliament to enforce or draft a law related to mob lynching. While the National Campaign Against Mob Lynching drafted Maanav Suraksha Kanoon (“MASUKA”), beginning the discourse on mob lynching in India, no steps have been taken on the legislative front to see it materialize into a concrete, enforceable law. MASUKA itself, however, is a noble attempt to address mob lynching and attends to police inaction and complicity; setting up special courts for speedy justice; rehabilitation and compensation for victims’ families; and witness protection. Nevertheless, at present, it merely takes the shape of being a recommendation or a potentiality.

Some argue that MASUKA, coupled with legislations like the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, or the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005, would allow a multi-pronged approach to tackle the issue of mob-violence and lynching. Particularly, also addressing the elements associated to protecting minorities, who are often the targeted victims of mob violence. This is worth noting, particularly given that most cases of lynching certainly involve not just communal, but also caste-based motivations. The surge of cases with regard to cow vigilantism – groups of devout Hindu nationalists, protecting sacred cows and self-enforcing the beef-ban, elucidates this well.

While there have been attempts by states such as Manipur, Rajasthan and West Bengal, who have passed Bills to prevent lynching, these are yet to get presidential assent. At present however, there is a lack of a specifically tailored Central legislation that highlights the basis of ‘lynching’ as a crime. Regrettably, till then, instances such as Palghar, Saharanpur, Ramghar, Alwar and Latehar lynchings will continue to highlight the gross inadequacy of India’s current criminal law framework to combat this systemic issue.